ONLY ONE TEACHER DISMISSAL BILL REMAINS ALIVE AT STATE LEGISLATURE

By Tami Abdollah, Pass / Fail | 89.3 KPCC http://bit.ly/LoHBTg

Bill Ferris/Flickr.com: California State Assembly floor

3/25 - 3:21pm - Only one of three bills recently introduced in the state Legislature that aim to make it easier to dismiss teachers is alive today, and may continue on to change state law.

AB2028, sponsored by Republican state Assemblymen Cameron Smyth of Santa Clarita and Steve Knight of the Antelope Valley, died in the Assembly Appropriations Committee today — the end of the fiscal deadline.

The bill, which was significantly amended last month, would eliminate the four-year limitation on introducing evidence to be used in proceedings and allow the dismissal process to begin during the summer.

AB2028 passed out of committee in its amended form last month, but was put "on suspense" in the Appropriations Committee because it cost more than $150,000; a hearing was held today to take bills off suspense, but AB2028 died without a vote, said Sabrina Lockhart, a spokeswoman for the Office of Assembly Republican Leader Connie Conway.

It would have cost the state $175,000 because of the expenses associated with mandating schools keep records for longer than four years, Lockhart said.

The California State Assembly Republican Caucus has pushed the bill, which in its initial form mirrored the L.A. Unified school board resolutions adopted on the dismissal issue after a recent spate of teacher arrests for lewd conduct with children. The California Teachers Assn. has vocally opposed the dismissal bills introduced at the Legislature and called them a retraction of due process protections for teachers.

"The committee approved hundreds of bills today, and I'm sure many of them cost more than $175,000," Lockhart said.

Lockhart said Mayor Antonio Villaraigosa's staff testified in support of AB2028 in April and told legislators that it costs $300,000 to dismiss one teacher.

Another bill, SB1059, sponsored by Republican state Sen. Bob Huff of Diamond Bar, never passed out of commitee in April.

Of the three bills, only SB1530 remains alive. It passed out of the state Senate Appropriations Committee on Thursday. It will go to the state Senate next week for a vote. Democratic state Sen. Alex Padilla of Pacoima worked with the CTA and committee members to amend the bill and narrow its scope.

 

SB 1530 (Padilla): School employees: dismissal, suspension, and leave of absence procedures. 

(as amended)

Italicized text includes proposed additions to law or the previous version of the bill.

Struck text includes proposed deletions to law or the previous version of the bill.

(pdf version)

AMENDED IN SENATE APRIL 26, 2012

AMENDED IN SENATE MARCH 27, 2012

INTRODUCED BY Senator Padilla

FEBRUARY 24, 2012

An act to amend Sections 44936, 44938, 44939,

44940, and 44944 of the Education Code, relating to school employees.

LEGISLATIVE COUNSEL'S DIGEST

SB 1530, as amended, Padilla. School employees: dismissal,

suspension, and leave of absence procedures.

(1) Under existing law, a permanent school employee is prohibited

from being dismissed, except for one or more of certain enumerated

causes, including for immoral or unprofessional conduct and

unsatisfactory performance. Upon a charging that there exists cause

for the dismissal or suspension of a permanent employee, existing law

authorizes the governing board of a school district to give notice

to the employee of its intention to dismiss or suspend the employee,

as specified. Existing law prohibits the governing board of a school

district from giving notice of dismissal or suspension of a permanent

employee between May 15 and September 15 of any year.

This bill would except from that prohibition of giving notice

between those dates, proceedings where the charges involve specified

offenses.

(2) Existing law prohibits the governing board of any school

district from acting upon charges of unprofessional conduct or

unsatisfactory performance against an employee unless the employee is

given written notice of the unprofessional conduct or unsatisfactory

performance, as provided.

This bill would delete the provision that prohibits the governing

board from acting upon charges of unprofessional conduct, as

specified.

(3)

(2) Existing law authorizes the governing board of a

school district to immediately suspend a permanent employee under

specified conditions, including immoral conduct, and give the

employee notice of the suspension, as specified.

This bill would include serious or egregious

unprofessional conduct within the conditions that a governing board

may immediately suspend a permanent employee.

(4)

(3) Existing law provides that a certificated employee

may be charged with a mandatory leave of absence offense for certain

specified sex offenses or controlled substance offenses with the

exception of marijuana, mescaline, peyote, or tetrahydrocannabinols.

Existing law also provides that a certificated employee may be

charged with an optional leave of absence offense for certain

offenses, including controlled substance offenses, as specified, with

the exception of marijuana, mescaline, peyote, or

tetrahydrocannabinols. Existing law requires the governing board of a

school district to immediately place a certificated employee on

compulsory leave of absence if the employee is charged with a

mandatory leave of absence offense.

This bill would remove marijuana, mescaline, peyote, and

tetrahydrocannabinols as exceptions to the controlled substance

offenses for which a certificated employee may be charged with a

mandatory leave of absence offense or an optional leave of absence

offense.

Because this bill would increase the number of employees subject

to immediate placement on compulsory leave of absence, thereby

increasing the duties of school districts, the bill would impose a

state-mandated local program.

(5)

(4) Existing law requires that a requested hearing on

the dismissal or suspension of a permanent employee be conducted by a

Commission on Professional Competence, as specified, and provides

that the decision of the commission is deemed to be the final

decision of the governing board of a school district. Existing law

prohibits testimony from being given and evidence from being

introduced relating to matters that occurred more than 4 years prior

to the filing of the notice, and prohibits a decision relating to the

dismissal or suspension of an employee from being made based on

charges or evidence relating to matters that occurred more than 4

years before the filing of the notice of charges for the dismissal or

suspension of the employee.

This bill would require the Commission on Professional

Competence , for hearings on the dismissal or suspension of

a permanent employee that involve certain sex offenses, controlled

substance offenses, or child abuse offenses, as specified,

to consist of require these hearings to be conducted

solely by an administrative law judge of the Office of

Administrative Hearings and would provide that the decision of the

commission administrative law judge

related to these specified offenses would be advisory in

nature to the governing board , and require the final

decision reg arding the discipline of the employee to be

determined by action of the governing board of the school district,

as specified . The bill would require the governing board,

before making its final determination, to allow the

employee to submit a written statement or response or, at the

election of the governing board, an oral statement concerning the

disciplinary action, and would require the governing board's final

determination to be subject to review and appeal, as specified. The

bill also would exempt hearings that involve these specified

offenses from the prohibition on giving testimony and introducing

evidence relating to matters that occurred more than 4 years before

the date of the filing of the notice, and would, for hearings that

involve the specified offenses, permit a decision relating to the

dismissal or suspension of an employee to be made based on charges or

evidence related to matters occurring more than 4 years before the

date of the filing of the notice of charges for the dismissal or

suspension of the employee.

(6)

(5) This bill also would make nonsubstnative

nonsubstantive and conforming changes to these

provisions.

(7)

(6) The California Constitution requires the state to

reimburse local agencies and school districts for certain costs

mandated by the state. Statutory provisions establish procedures for

making that reimbursement.

This bill would provide that, if the Commission on State Mandates

determines that the bill contains costs mandated by the state,

reimbursement for those costs shall be made pursuant to these

statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes.

State-mandated local program: yes.

 

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 44936 of the Education Code is amended to read:

44936. (a) The notice of dismissal or

suspension in a proceeding initiated pursuant to Section 44934 shall

not be given between May 15 and September 15 , except in

proceedings where the charges involve any offense as defined in

Sections 44010 and 44011 of this code, and Sections 11165.2 to

11165.6, inclusive, of the Penal Code . The notice shall be

in writing and be served upon the employee personally or by United

States registered mail addressed to him or her at the employee's last

known address. A copy of the charges filed, containing the

information required by Section 11503 of the Government Code,

together with a copy of the provisions of this article, shall be

attached to the notice.

(b) The notice of dismissal or suspension in a proceeding

initiated pursuant to charges described in Section 44939 may be given

at any time during the calendar year. This subdivision is intended

to codify the holding of Board of Education v. Commission on

Professional Competence (1976) 61 Cal.App.3d 664.

SEC. 2. Section 44938 of the Education Code is

amended to read:

44938. (a) The governing board of a school district shall not act

upon any charges of unsatisfactory

performance unless it acts in accordance with the provisions of

paragraph (1) or (2):

(1) At least 90 calendar days before the date of the filing, the

governing board or its authorized representative has given the

employee against whom the charge is filed written notice of the

unsatisfactory performance specifying the nature thereof with such

specific instances of behavior and with such particularity as to

furnish the employee an opportunity to correct his or her faults and

overcome the grounds for the charge. The written notice shall include

the evaluation made pursuant to Article 11 (commencing with Section

44660) of Chapter 3, if applicable to the employee.

(2) The governing board may act during the time period composed of

the last one-fourth of the schooldays it has scheduled for purposes

of computing apportionments in any fiscal year if, before the

beginning of that time period, the governing board or its authorized

representative has given the employee against whom the charge is

filed written notice of the unsatisfactory performance specifying the

nature thereof with such specific instances of behavior and with

such particularity as to furnish the employee an opportunity to

correct his or her faults and overcome the grounds for the charge.

The written notice shall include the evaluation made pursuant to

Article 11 (commencing with Section 44660) of Chapter 3, if

applicable to the employee.

(b) "Unsatisfactory performance" as used in this section means,

and refers only to, the unsatisfactory performance particularly

specified as a cause for dismissal in Section 44932 and does not

include any other cause for dismissal specified in Section 44932.

SEC. 3. SEC. 2. Section 44939 of the

Education Code is amended to read:

44939. (a) Upon the filing of written charges, duly signed and

verified by the person filing them with the governing board of a

school district, or upon a written statement of charges formulated by

the governing board, charging a permanent employee of the district

with immoral or unprofessional conduct

serious or egregious unprofessional conduct, immoral conduct ,

conviction of a felony or of any crime involving moral turpitude,

with incompetency due to mental disability, with willful refusal to

perform regular assignments without reasonable cause, as prescribed

by reasonable rules and regulations of the employing school district,

with violation of Section 51530, with knowing membership by the

employee in the Communist Party or with violation of any provision in

Sections 7001 to 7007, inclusive, the governing board may, if it

deems such action necessary, immediately suspend the employee from

his or her duties and give notice to the employee of his or her

suspension, and that 30 days after service of the notice, the

employee will be dismissed, unless he or she demands a hearing.

(b) If the permanent employee is suspended upon charges of knowing

membership by the employee in the Communist Party or for violation

of Section 7001, 7002, 7003, 7006, 7007, or 51530, the employee may

within 10 days after service upon him or her of notice of such

suspension file with the governing board a verified denial, in

writing, of the charges. In such event the permanent employee who

demands a hearing within the 30-day period shall continue to be paid

his or her regular salary during the period of suspension and until

the entry of the decision of the Commission on Professional

Competence, if and during such time as the employee furnishes to the

school district a suitable bond, or other security acceptable to the

governing board, as a guarantee that the employee will repay to the

school district the amount of salary so paid to him or her during the

period of suspension in case the decision of the Commission on

Professional Competence is that the employee shall be dismissed. If

it is determined that the employee may not be dismissed, the school

board shall reimburse the employee for the cost of the bond.

SEC. 4. SEC. 3. Section 44940 of the

Education Code is amended to read:

44940. (a) For purposes of this section, "charged with a

mandatory leave of absence offense" is defined to mean charged by

complaint, information, or indictment filed in a court of competent

jurisdiction with the commission of a sex offense as defined in

Section 44010, or with the commission of an offense involving aiding

or abetting the unlawful sale, use, or exchange to minors of

controlled substances listed in Schedule I, II, or III, as contained

in Sections 11054, 11055, and 11056 of the Health and Safety Code.

(b) For purposes of this section, "charged with an optional leave

of absence offense" is defined to mean a charge by complaint,

information, or indictment filed in a court of competent jurisdiction

with the commission of a controlled substance offense as defined in

Section 44011 or 87011, or a violation or attempted violation of

Section 187 of the Penal Code, Sections 11357 to 11361, inclusive, or

Section 11363, 11364, or 11370.1 of the Health and Safety Code,

insofar as these sections relate to controlled substances.

(c) For purposes of this section and Section 44940.5, the term

"school district" includes county offices of education.

(d) (1) If a certificated employee of a school district is charged

with a mandatory leave of absence offense, as defined in subdivision

(a), upon being informed that a charge has been filed, the governing

board of the school district shall immediately place the employee on

compulsory leave of absence. The duration of the leave of absence

shall be until a time not more than 10 days after the date of entry

of the judgment in the proceedings. No later than 10 days after

receipt of the complaint, information, or indictment described by

subdivision (a), the school district shall forward a copy to the

Commission on Teacher Credentialing.

(2) Upon receiving a copy of a complaint, information, or

indictment described in subdivision (a) and forwarded by the school

district, the Commission on Teacher Credentialing shall automatically

suspend the employee's teaching or service credential. The duration

of the suspension shall be until a time not more than 10 days after

the date of entry of the judgment in the proceedings.

(e) (1) If a certificated employee of a school district is charged

with an optional leave of absence offense, as defined in subdivision

(b), the governing board of the school district may immediately

place the employee on compulsory leave in accordance with the

procedure in this section and Section 44940.5. If a certificated

employee is charged with an offense deemed to fall into both the

mandatory and the optional leave of absence categories, as defined in

subdivisions (a) and (b), that offense shall be treated as a

mandatory leave of absence offense for purposes of this section. No

later than 10 days after receipt of the complaint, information, or

indictment described by subdivision (a), the school district shall

forward a copy to the Commission on Teacher Credentialing.

(2) Upon receiving a copy of a complaint, information, or

indictment described in subdivision (a) and forwarded by the school

district, the Commission on Teacher Credentialing shall automatically

suspend the employee's teaching or service credential. The duration

of the suspension shall be until a time not more than 10 days after

the date of entry of the judgment in the proceedings.

SEC. 5. SEC. 4. Section 44944 of the

Education Code is amended to read:

44944. (a) (1) In a dismissal or suspension proceeding initiated

pursuant to Section 44934, if a hearing is requested by the employee,

the hearing shall be commenced within 60 days from the date of the

employee's demand for a hearing. The hearing shall be initiated,

conducted, and a decision made in accordance with Chapter 5

(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of

the Government Code. However, the hearing date shall be established

after consultation with the employee and the governing board, or

their representatives, and the Commission on Professional Competence

shall have all of the power granted to an agency in that chapter,

except that the right of discovery of the parties shall not be

limited to those matters set forth in Section 11507.6 of the

Government Code but shall include the rights and duties of any party

in a civil action brought in a superior court under Title 4

(commencing with Section 2016.010) of Part 4 of the Code of Civil

Procedure. Notwithstanding any provision to the contrary, and except

for the taking of oral depositions, no discovery shall occur later

than 30 calendar days after the employee is served with a copy of the

accusation pursuant to Section 11505 of the Government Code. In all

cases, discovery shall be completed prior to seven calendar days

before the date upon which the hearing commences. If any continuance

is granted pursuant to Section 11524 of the Government Code, the time

limitation for commencement of the hearing as provided in this

subdivision shall be extended for a period of time equal to the

continuance. However, the extension shall not include that period of

time attributable to an unlawful refusal by either party to allow the

discovery provided for in this section.

(2) If the right of discovery granted under paragraph (1) is

denied by either the employee or the governing board, all of the

remedies in Chapter 7 (commencing with Section 2023.010) of Title 4

of Part 4 of the Code of Civil Procedure shall be available to the

party seeking discovery and the court of proper jurisdiction, to

entertain his or her motion, shall be the superior court of the

county in which the hearing will be held.

(3) The time periods in this section and of Chapter 5 (commencing

with Section 11500) of Part 1 of Division 3 of Title 2 of the

Government Code and of Title 4 (commencing with Section 2016.010) of

Part 4 of the Code of Civil Procedure shall not be applied so as to

deny discovery in a hearing conducted pursuant to this section.

(4) The superior court of the county in which the hearing will be

held may, upon motion of the party seeking discovery, suspend the

hearing so as to comply with the requirement of the

preceding paragraph (3) .

(5) (A) A witness shall not be permitted to testify at the hearing

except upon oath or affirmation.

(B) Except for hearings that involve any offense as defined in

Sections 44010 and 44011 of this code, and Sections 11165.2 to

11165.6, inclusive, of the Penal Code:

(i) Testimony shall not be given or evidence introduced relating

to matters that occurred more than four years before the date of the

filing of the notice.

(ii) Evidence of records regularly kept by the governing board

concerning the employee may be introduced, but no decision relating

to the dismissal or suspension of an employee shall be made based on

charges or evidence of any nature relating to matters occurring more

than four years before the filing of the notice.

(b) The hearing provided for in this section shall be conducted

by a Commission on Professional Competence as

follows:

(1) The Commission on Professional Competence shall

consist of an administrative law judge of the Office of

Administrative Hearings for a A hearing that

involves any offense as defined in Sections 44010 and 44011 of this

code, and Sections 11165.2 to 11165.6, inclusive, of the Penal Code

shall be conducted solely by an administrative law judge of the

Office of Administrative Hearings .

(2) The Commission on Professional Competence shall be

comprised as follows for hearings Hearings not

specified in paragraph (1) shall be conducted by the Commission

on Professional Competence, which shall be comprised as follows

:

(A) One member of the commission shall be selected by the

employee, one member shall be selected by the governing board, and

one member shall be an administrative law judge of the Office of

Administrative Hearings who shall be chairperson and a voting member

of the commission and shall be responsible for assuring that the

legal rights of the parties are protected at the hearing. If either

the governing board or the employee for any reason fails to select a

commission member at least seven calendar days before the date of the

hearing, the failure shall constitute a waiver of the right to

selection, and the county board of education or its specific designee

shall immediately make the selection. If the county board of

education is also the governing board of the school district or has

by statute been granted the powers of a governing board, the

selection shall be made by the Superintendent, who shall be

reimbursed by the school district for all costs incident to the

selection.

(B) The member selected by the governing board and the member

selected by the employee shall not be related to the employee and

shall not be employees of the district initiating the dismissal or

suspension and shall hold a currently valid credential and have at

least five years' experience within the past 10 years in the

discipline of the employee.

(c) (1) The decision of the Commission on Professional Competence

with regard to a hearing conducted pursuant to paragraph (2) of

subdivision (b) shall be made by a majority vote, and the

commission shall prepare a written decision containing findings of

fact, determinations of issues, and a disposition that shall be,

solely, one of the following:

(A) That the employee should be dismissed.

(B) That the employee should be suspended for a specific period of

time without pay.

(C) That the employee should not be dismissed or suspended.

(2) The decision of the Commission on Professional

Competence commission with regard to a hearing

conducted pursuant to paragraph (2) of subdivision (b) that the

employee should not be dismissed or suspended shall not be based on

nonsubstantive procedural errors committed by the school district or

governing board unless the errors are prejudicial errors.

(3) The commission shall not have the power to dispose of the

charge of dismissal by imposing probation or other alternative

sanctions. The imposition of suspension pursuant to subparagraph (B)

of paragraph (1) shall be available only in a suspension proceeding

authorized pursuant to subdivision (b) of Section 44932 or Section

44933.

(4) (A) The decision of the

Commission on Professional Competence commission with

regard to a hearing conducted pursuant to paragraph (2) of

subdivision (b) shall be deemed to be the final decision of the

governing board. However, the

(B) The decision of the

Commission on Professional Competence administrative

law judge with regard to a hearing conducted pursuant to paragraph

(1) of subdivision (b) shall be deemed to be advisory

in nature to advisory, and the final decision

regarding the discipline of the employee shall be determined by

action of the governing board with respect to hearings

that involve any offense as defined in Sections 44010 and 44011 of

this code, and Sections 11165.2 to 11165.6, inclusive, of the Penal

Code of the school district. None of the findings,

recommendations, or determinations contained in the proposed decision

of the administrative law judge shall be binding on the

governing board. The governing board shall, before making its final

determination, allow the employee to submit a written statement or

response or, at the election of the governing board, an oral

statement concerning the disciplinary action. The governing board's

final determination shall be subject to review and appeal pursuant to

Section 1094.5 of the Code of Civil Procedure .

(5) The governing board may adopt from time to time rules and

procedures not inconsistent with this section as may be necessary to

effectuate this section.

(6) The governing board and the employee shall have the right to

be represented by counsel.

(d) (1) If the member selected by the governing board or the

member selected by the employee is employed by a school district in

this state, the member shall, during service on a Commission on

Professional Competence, continue to receive salary, fringe benefits,

accumulated sick leave, and other leaves and benefits from the

district in which the member is employed, but shall receive no

additional compensation or honorariums for service on the commission.

(2) If service on a Commission on Professional Competence

commission occurs during summer recess or

vacation periods, the member shall receive compensation proportionate

to that received during the current or immediately preceding

contract period from the member's employing district, whichever

amount is greater.

(e) (1) If the Commission on Professional Competence determines

in a hearing conducted pursuant to paragraph (2) of subdivision

(b) that the employee should be dismissed or suspended, the

governing board and the employee shall share equally the expenses of

the hearing, including the cost of the administrative law judge. The

state shall pay any costs incurred under paragraph (2) of subdivision

(d), the reasonable expenses, as determined by the administrative

law judge, of the member selected by the governing board and the

member selected by the employee, including, but not limited to,

payments or obligations incurred for travel, meals, and lodging, and

the cost of the substitute or substitutes, if any, for the member

selected by the governing board and the member selected by the

employee. The Controller shall pay all claims submitted pursuant to

this paragraph from the General Fund, and may prescribe reasonable

rules, regulations, and forms for the submission of the claims. The

employee and the governing board shall pay their own attorney's fees.

(2) If the Commission on Professional Competence

commission determines in a hearing

conducted pursuant to paragraph (2) of subdivision (b) that the

employee should not be dismissed or suspended, the governing board

shall pay the expenses of the hearing, including the cost of the

administrative law judge, any costs incurred under paragraph (2) of

subdivision (d), the reasonable expenses, as determined by the

administrative law judge, of the member selected by the governing

board and the member selected by the employee, including, but not

limited to, payments or obligations incurred for travel, meals, and

lodging, the cost of the substitute or substitutes, if any, for the

member selected by the governing board and the member selected by the

employee, and reasonable attorney's fees incurred by the employee.

(3) As used in this section, "reasonable expenses" shall not be

deemed "compensation" within the meaning of subdivision (d).

(4) If either the governing board or the employee petitions a

court of competent jurisdiction for review of the decision of the

commission, the payment of expenses to members of the commission

required by this subdivision shall not be stayed.

(5) (A) If the decision of the commission in a hearing

conducted pursuant to paragraph (2) of subdivision (b) is

finally reversed or vacated by a court of competent jurisdiction,

either the state, having paid the commission members' expenses, shall

be entitled to reimbursement from the governing board for those

expenses, or the governing board, having paid the expenses, shall be

entitled to reimbursement from the state.

(B) Additionally, either the employee, having paid a portion of

the expenses of the hearing, including the cost of the administrative

law judge, shall be entitled to reimbursement from the governing

board for the expenses, or the governing board, having paid its

portion and the employee's portion of the expenses of the hearing,

including the cost of the administrative law judge, shall be entitled

to reimbursement from the employee for that portion of the expenses.

(f) The hearing provided for in this section

paragraph (2) of subdivision (b) shall be conducted in a

place selected by agreement among the members of the commission. In

the absence of agreement, and for hearings conducted pursuant to

paragraph (1) of subdivision (b), the place shall be selected by the

administrative law judge.

SEC. 6. SEC. 5. If the Commission on

State Mandates determines that this act contains costs mandated by

the state, reimbursement to local agencies and school districts for

those costs shall be made pursuant to Part 7 (commencing with Section

17500) of Division 4 of Title 2 of the Government Code.